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Let's Not Play - The Copyright Battle Turns Ugly

Intellectual property laws have failed to keep pace with change - now they're hurting both the rights holders and the content creators.

Let me throw out a hypothetical, though realistic, question. Let's say you're a musician, and you
make a song which you release commercially. Shortly afterwards, someone makes a video -
probably a video of a cat doing something funny, since that's what most videos seem to be - and
uses your song as the backing track. It matches up to the hilarious feline antics perfectly, and the
video is a huge hit - shared on social networks all over the world, it racks up millions of views and, through YouTube's revenue sharing scheme, earns a tidy amount for its creator.

You can see the question coming, no doubt - are you entitled to a share of that revenue? After
all, your song is a key part of the video. The video creator is the primary creator of the work,
unquestionably, but the song you recorded is a major part of the composition. It's not like they've
just used a tiny sample of the song, which might (might!) qualify as fair use in some jurisdictions - they've used a whole verse and chorus, a significant chunk of your material.

"YouTube initiated a clamp-down on copyrighted content in their videos which has been nothing short of a disastrous cock-up"

Right now, copyright law says that yes, you're entitled to a share of the revenues - and most
people would agree that that feels like a just and reasonable situation. So let's move on to
consider the case of a video which primarily consists of footage of a video game, with a voiceover commentary and perhaps some extra musical backing. The input of the creator of one of these Let's Play videos is undoubtedly significant, which explains why some of the best creators have such huge followings - but as in the case of the cat video with the commercial music track, the Let's Play video also leans heavily on the commercial work of another creator or company. It's pretty hard to find any credible moral argument which says that the composer of backing music should be paid, but the creator of the game in a Let's Play video shouldn't be paid.

Note that I said "moral argument", not "commercial argument" - the two things aren't the same a lot of the time. British online retailer Zavvi is presently having its tender bits held above a naked flame for a situation in which, despite being legally and morally perfectly justified in its actions, it made the commercially stupid decision to sue some customers who refused to return PS Vita consoles shipped by mistake to them. The fact that Zavvi is legally in the right and customers
refusing to return the company's property are being greedy and underhanded at best is almost
irrelevant given the PR disaster this has snowballed into - one which will cost Zavvi far more to
rectify than the price of a few handheld consoles. Similarly, it's entirely likely that while it's legally and morally justified for game publishers to seek a revenue share from Let's Play videos, it would be commercially daft for them to do so, for a whole host of reasons.

The hypothetical situation described above is ongoing right now, as the rise of Let's Play culture
has created a small but dedicated group of individuals who actually earn their income from posting game videos on YouTube. They're often talented, hard-working and charismatic people, and the appeal of their channels arises from their own personalities, not the games they play - but the fact remains that the games are a core part of the content, and the game creators see no share of the money being made.

"Copyright law as it stands is getting worse rather than better. It is being used to hold back the floodwaters of new content delivery platforms and content creation culture"

This week, YouTube initiated a clamp-down on copyrighted content in their videos which has been nothing short of a disastrous cock-up - and yet is probably the only option open to YouTube, a platform that finds itself trapped in between a content culture that has changed far more rapidly than copyright law has been able to keep up with. Actually, that's a slightly unfair description; it's not so much that copyright law hasn't been able to keep up as that it hasn't really tried, being perhaps the area of law which is most in thrall to entrenched corporate interests, least concerned with the wider good of society or culture and most stubbornly anti-competitive. Copyright law as it stands is terrible, backwards and generally getting worse rather than better, as it is being wielded as a weapon by established firms whose primary concern is not the protection of intellectual property rights but the use of those rights to hold back the floodwaters of new content delivery platforms and content creation culture.

Nothing in the legislative regime governing copyright either in the USA or internationally (US laws tend to trickle out to other nations via nasty little trade treaties negotiated in private, which often bind overseas states to following US copyright and patent standards despite the existence of markedly different cultures and legislative environments in other regions) gives any workable, reasonable guidance for how a site like YouTube should handle copyright issues. 100 hours of video are uploaded to YouTube every minute; it's simply impossible for each video to be checked by a human, of course, so YouTube has built something called Content ID, which takes a database of registered copyright content from a host of publishers and IP holders and then tries to match it automatically against content found in uploaded videos.

There are two immense problems with what happens next, both of them rooted more deeply in law than in technology. Firstly, Content ID flags a lot of videos entirely inappropriately. The system has no concept of fair use - this is true both technologically, as the system will happily flag up a video shot in a location where background music was playing (or a level of a game where music was playing) as being a content violation for its musical content, and legally, as the system is incapable of understanding the notion of fair use in terms of the use of short clips, extracts, screenshots or samples. These things are essential for many kinds of video - any video reviewing, critiquing, parodying or commenting upon just about anything will need to use some small element of the thing in question in order to illustrate its points. That's why fair use (or equivalent provisions, such as fair dealing in the UK) exists in the first place. We cannot have a culture of critique, comment and review if it is a copyright infringement to use any element of the original work, no matter how small. However, few legal jurisdictions, if any, provide guidelines on fair use which are watertight enough to be implemented by a computer system like Content ID - it's more of an "I know it when I see it" legal concept which does have some clear aspects to its definition, but not clear enough that fair use could be weighed against copyright infringement by an algorithm.

"This isn't a bad system because it's persecuting honest content creators while missing out on violators; it's a bad system because it's catching absolutely everyone in the same dragnet"

So, YouTube flags everything - fair use or otherwise - as an infringement. This obviously isn't good enough, not least because of what happens in the next step; YouTube reacts to this by shutting off monetisation features for flagged videos, meaning that the creators cannot receive any share of ad revenue from their video.

This ends up looking childish and petty on the part of the copyright holder - who probably didn't actually have anything to do with the process, this being entirely a system implemented by YouTube. The publisher's only recourse to not looking like a sack full of suit-wearing genitalia would be to withdraw entirely from Content ID related databases, which even if it is possible (I'm
honestly not sure on this point - I know it's complex at best) would effectively be giving up any chance of contesting even flagrant abuses of copyright. So the publisher ends up with a nasty legal notice stuck on the video with their name in the middle of it, and to make the whole affair asdumb and unpleasant as possible for all parties, the outcome is that nobody makes money from
the video. The publisher doesn't get a share for their content (deserved or not), and now the video uploader doesn't get anything either. Maybe it's "fair", but it ends up harming one party without actually advantaging the other.

Of course, there are many videos on YouTube that are simply flagrant copyright violations. This isn't a bad system because it's persecuting honest content creators while missing out on violators; it's a bad system because it's catching absolutely everyone in the same dragnet. It's likely to have a chilling effect on one of the most important and rapidly-growing outlets for criticism and comment on media, it makes publishers look absolutely terrible and it destroys the livelihoods of the small but growing number of pioneers working in this field. It catches the bad guys but punishes everyone else in the process.

What needs to happen, unfortunately, is much more than an overhaul of Content ID or YouTube's rules. We will ultimately need a new copyright settlement that respects the changes that have occurred to content ownership, creation and distribution in the past 20 years. Widespread mechanical licensing of content and revenue sharing will almost certainly need to feature in that somehow; as unpleasant as it may seem to some creators, some kind of blanket permission for derivative works tied up to an automatic system for sharing resulting revenues is probably one major part of the solution to a problem that's only going to get bigger. Moreover, fair use laws are going to need to be updated - made more robust, more encompassing and most of all, more clear in the strict definitions of the content they cover, such that they can be implemented automatically by Content ID style systems with a reasonable chance of actually working.

" An attack on Let's Play videos is just one minor skirmish in a wider battle"

We need a system where you can share content on the Internet and, if it's fair use - a review, a critique, a parody - it's cleared by the system (or treated as innocent until proven guilty), while if it uses infringing material beyond the bounds of fair use, rather than shutting off your revenue stream, providers like YouTube simply allocate a reasonable split of it to the publisher. That's not something that would be impossible to implement (though the devil would be in the details), but it's something that, to the best of my knowledge, simply wouldn't be possible in the current legal regime. A private arrangement between every rights holder in the world might manage it, but what chance of that ever happening?

In short - as YouTubers vent their fury and publishers scramble to protest their innocence in this latest bout of foolishness, we need to look to a wider picture and understand that what we're seeing is merely a microcosm. Technological and cultural changes have outpaced the copyright system; that system in turn has been held back by entrenched corporate interests. An attack on Let's Play videos is just one minor skirmish in a wider battle that simply must end in root and branch reform of the copyright system - creating a system for the 21st century that actually fulfils its duty of protecting and advantaging creators, consumers, and culture as a whole.

Hey GI, let's not blame the US for copyright law problems. The EU currently has the strictest copyright laws in the world. The Enforcement Directive makes the US DMCA look tame (not that either are good).

My idea YEARS back that got me laughed at was to find royalty free music and use it as background for game videos while cutting out the game sounds and music entirely. This got me some grief, but I bet that if people DID do this, none of their videos would get yanked. Sure, some "Let's Play" stuff would have been zapped by some companies that are generally being dicks about that in some cases, but I can safely say that a LOT of what's happening now I said would occur once any company or YouTube itself started enforcing what seems to some a very random set of rules...

@Nicholas - The EU directives are ugly as hell, agreed, but the US has been much more aggressive in its attempts to export its own copyright regime (and indeed, even some aspects which were rejected domestically after widespread protest) via trade treaties. TPP is a good example; were it to be implemented in its present form, which thankfully seems unlikely, it would export a vastly more aggressive and unpleasant version of the US patent and copyright regime to a host of other economies around Asia and the Americas.

Not that the EU wouldn't like to do something similar, but it doesn't have the clout or internal cohesion required to do so.

Orrrrrr people could just move to a different video publishing site since youtube keeps getting worse and worse? There's plenty out there, and I've already seen a few former lets players move their videos to their own website. Finding a source of revenue similar to what youtube gave them is going to be the tricky bit but hey, normal website banner ads are still a thing.

I have to say I'm a little sceptical about the conclusions of this article though. It starts off by saying big changes are needed to copyright law, but then the only concrete changes it seems to suggest are to the way YouTube scans for content. At most it seems to ask for clearer guidance on how the existing fair use/fair dealing rules should be interpreted. Sorry if I'm getting the wrong end of the stick, but I don't see what the actual 'root and branch reform' being called for would really be. The basic rules of 'if you make something you own it, and other people can only use it with your permission' is the same regardless of technology, right?

Andrew - the biggest change that I'm calling for is actually with regard to the "other people can only use it with your permission" aspect. That was workable in an era where a handful of people had access to creation and distribution channels; it's simply an outdated notion now that those channels are wide open and everyone who consumes content has the potential to remix, reinterpret and create their own.

I think we need to move to a system which enables this rather than trying to hold back the floodwaters, and that means changing the terms of copyright to allow people to sample and reinterpret *without* permission, but with an automatic mechanism in place to deliver revenue shares back to the originator.

Lots of people won't like that and will fight against it - it's a massive upheaval to the very underlying notion of copyright - but honestly, I don't see the alternative. We want artists to get paid; ironically, our present copyright laws are making it increasingly difficult for this to happen despite one of the most extraordinary periods of human history for cultural creation and sharing.

(Worth noting that I also believe that significant reform is desperately needed in other areas, but this article deals specifically with the present discussion of YouTube - i.e. the aspects of copyright concerned with "remix culture", as it were, and the broadening of the creative class.)

'Lot's of people won't like that and will fight against it' is probably quite a large understatement, I fear. As you recognise, it's a massive upheaval. Completely reverses a large chunk of the existing system. And the automatic revenue sharing mechanism would essentially mean having one single licensing deal in place for every different platform, which would make a lot of people unhappy.

I certainly see the logic behind your thinking, but I reckon it would be easier, quicker, and perhaps fairer in terms of allowing people to keep ownership of their own creations, to find a technological solution. We need a more nuanced way to automatically interpret whether something is fair use for one thing, which shouldn't be entirely impossible. And on the other hand, if more companies make clear statements that they don't mind Let's Play videos and the like, a system should be able to interpret that easily enough and provide blanket approval for use of that type.

I'm not saying we can get all that wrapped up in the next month or anything, but what you're suggesting would quite possibly mean tooling around with the Berne Convention, which would probably take ten years or so.

I agree that the practical first step is a piecemeal approach to fixing up the existing legislation - at least attempting to push it in the right direction, towards genuinely encouraging a creative environment, rather than the present attempts by large corporate interests to use copyright law as a weapon against change. Establishing clear protocols for Fair Use and a set of flags which content owners can set in a public database to indicate their assent to various types of sharing and sampling would be an excellent first step.

Ultimately, though, we ARE going to have to rethink Berne, because it's desperately outdated. Its basic principles are mostly admirable, but it's a convention created in a world where copying of media was, even at a basic level, relatively expensive and time-consuming, creative tools which relied on sampling or reinterpretation were available only to a small minority and distribution channels were available to an even smaller minority. Things like individually negotiated licenses made sense in a world where there were really only a few hundred players of any significance in the creative industries. They simply don't make any sense today, and within the next couple of decades we face a stark choice - return to Berne and rethink its provisions in a way that matches the reality of the world, or watch Berne fall apart and face a 21st century without a central, agreed approach to copyright of any kind.

@Rob - I'm not sure "without permission" is the proper way to describe it. There's no logical disconnect between automated mechanisms for attribution of (and compensation for) derivative works and copyright holders granting permission. I think any system which dictated that content owners were required to grant permission for derivative works would trigger far too much push back to succeed. Elective permissions with an automated system for enforcing the legal requirements of those permissions would eventually win out on its own, in spite of certain interests that might initially opt out.

Overall though I can't agree more with the conclusions of this piece. To get somewhat philosophical, this is but one element of a much broader struggle for the nature of creation. It's most obvious in intellectual works because they're far more flexible than hard goods, but I think it's all on the same trend line. With intellectual/content creation we've had a broadcast-based dynamic that started with the printing press and has only grown more extensive since. The 20th century, in terms of the actual dissemination of intellectual property, has been almost purely defined by the creator/consumer dichotomy which results from "broadcast" mediums.

That dichotomy has also created the illusion among content creators and intellectual property holders that their creations represent an "end product" for which the means of access and context of consumption can be strictly defined. The Internet has hopefully by this point completely shattered that illusion. Just as a Hollywood feature film represents the result of a large collection of disparate works that have been paid for by its producers, so too should a YouTube video of that film with its audio replaced by a third party's soundtrack.

It will not be easy to make producing and paying for that YouTube video as turnkey as it is for the original film to include a chair purchased at Ikea. But the technology and the legal framework will not be the hardest part, by far. The real challenge will be convincing people who have built empires on the 20th century's broadcast heyday that it is both culturally and economically foolish for them to consider their works any different from that chair.

It may well be selection bias on my part, but it does seem that the game industry is embracing this new future somewhat better than other media industries. Even before the Internet was a major force in our daily lives games were being built with explicit support for third party modification, and that trend continues in various forms today. Gabe Newell has spoken (briefly) of a framework for exactly this kind of derivative work licensing and compensation as an extension of what Valve has accomplished with Steamworks. I have no idea how much effort is being put towards that, however. SOE has made the concept a major part of their new Everquest Next title, and their announcement presentation specifically mentioned players creating works for in-game sale that were based upon other players' works, with them being automatically compensated. That system I believe is using only in-game currency which probably gives them the legal shield necessary to take that step today, but the trajectory is clear. People just need to become disenchanted with the "traditional" means of creation and collaboration which I hope will eventually be looked upon as an aberration.

From my experience or working in the music industry previously, these kind of problems came along in the past when people were remixing music and claiming some IP / input on the new material, and the way the pieces were put together. I believe the music producers guild covers all of this information and guidance in regard to the music industry these days. It could be a good point of reference for video and games industry going forward. These things are effectively remixes at the end of the day.

Mmm, not sure I agree with your views, at all... so a "remix culture" emerged, so creators should just accept it and abandon their rights, by default? Nope, it's like saying "Grafitti has emerged so you should accept your walls to be covered with paint, come on, that's art, everyone is Banksy; deal with it, accept modernity...".

It should be up to contend creators to decide if their blood and sweat (and financial risks) can be used by someone else. Rap artists actually pay for the sample they use, as they make money out of it. If Youtubers make money out of their uploads, using (sometime heavily) external contend, they should pay for it. That includes "critics": would a video of them talking about the game without any capture lend them as much money? What about the cases when they ruin a game reputation based on their sole judgement, but relying on that game assets to make the whole thing fun and attractive? Not fair at all to the creators. Fair use is precisely for when you don't make money out of it, making millions (sometime) on the back of creators (be it films, music, games, whatever) is not fair at all.

"an automatic mechanism... to share revenu"... ok, at which level? See, the devil in the details... I say I want 99% as I created the game... still ok? Or each creator have the choice... ok, per game? per usage made of that game? For ever or is goes down in time? And what happens when I upload a top 10 FPS video? Share between the 10 creators? On pro-rata of length or "importance"? And what about my edits on the source: I say it was so successful because I added a fantastic "blur" filter on top of your shitty initial art direction... So I am kind of the author now... well it depends how strong the blur is... at some point is becomes modern art and you can't tell what the source was... who sets that limit?... see... in the details, the details that runs the world, that is impossible to manage.

So the only simple and manageable rule that remains is "no you can't, by default", that the only (clunky and possibly harsh) one that gives some level of protection to the creators. Rest is just opening the Pandora box, one way or the other.

Thanks Rob. I guess I just don't think the problem is quite as fundamental as you do, so I don't think the response needs to be quite so drastic. As I think some other people have alluded to, if we just get better at doing small-scale licensing quickly and cheaply, it would solve most of the problems. Hopefully the Digital Copyright Exchange that is being trialled will be the first step in that direction. And in the meantime it's a learning process for people like YouTube and the big content owners about how to apply their own policies.

As has been said, the games industry has taken a pretty good lead in being flexible and reasonable about how IP gets used, allowing for UGC, Let's Play videos and the like where they can. I think that's a good example of how, although there continue to be wrinkles, it's possible to get to a fairly happy situation for all sides under the existing law. Obviously we're all still learning how this new world is going to work, but I don't think it means we have to start over from the beginning.

Consider how much effort companies spent trying to create their products the way they do. How products are carefully designed to be perceived in a certain fashion. Then consider how much money is spent so PR can fine tune this perception. Look at E3, where company CEOs get muted by PR people they hired for the exact purpose of being on track with the plan. Consider how much repercussions were threatened over the years towards press people derailing the desired perception of a product with their own review.

Do you honestly think any publishers wants to relinquish their control by being on board with a quick and easy licensing scheme for copyrighted material?

I think the answer is the gaming industry should just make it easy for creators to contact them and gain licensing information or permission.

You dont see you tube videos and mock up of all the NFL or MLB games that happen every week, this is no different. THe NFL and MLB go out of their way to make announcement before or during every game making it clear you need a license and/or their permission. The game industry has to be the ones that get with the times. Let people know what the rules are.

Edited 1 times. Last edit by Todd Weidner on 13th December 2013 2:23pm

My feelings when reading the article somewhat echo those of Klaus above. There seems to be an inherent assumption in the article that there is such value in Lets Play type activities, that some kind of structure change is required so that those activities aren't blocked by the enforcement of pesky copyright ownership. I believe assumptions should always be challenged before we move onto the generation of solutions, just in case we aren't fixing the right problem, so lets challenge that assumption...

It could be suggested that the ability of creatives to generate a secure income from the sweat of their brow, is not something to be discarded lightly. And that before we reduce that security in order that another creative can 'remix' their efforts, we should consider what the world would be like if the latter was not possible. With my devil's advocate's hat on, I might say "Why does it matter that some people struggle to distribute a video of them talking over the top of their video game session?" I'm sure there are some pretty good answers to be had, but those answers have to stand up against the pile of already very good answers to the question "Why does it matter if other people use your work and you don't get paid?" It isn't just about whether publishers et al would want to relinquish control, but also about why they should even consider doing so. With so many creatives in the world able to make something from scratch, own it, and profit from it, what are adaptive creatives bringing to the table? /DA hat off

You raise valid points, John. I would say that if a game is brilliant and no one is there to play it, it doesn't make a sound. All Let's Play are not created equal, to be certain. But the ones with intelligent discussion and strategy are very important to the purchasing decisions of informed consumers.

If I have made a game, I want there to be millions of people out there talking about it. I want somebody to be so obsessed with beating a boss I created that they take the hours necessary to make a good video and I want thousands more to watch that video. In the days of print, the discerning consumer would read a review first. Now they can watch someone playing it before making that choice.

A publisher the size of EA or Activision might not, but smaller organizations who don't have gigantic promotions budget certainly could benefit. The overwhelming majority of these videos are favorable toward the game. After all, who hates a game and wants to spend 20 hours making videos on it?

I understand copyright when it comes to music as you consume it by hearing, but when you watch Let's Play videos you are not actually playing the game, maybe you are just trying to check it out before you buy it.

I'd like to point out to you that after Curiosity landed on Mars, content companies tried to shut down NASA's own broadcasts because the broadcasts used the same footage that the news companies had distributed.

This kind of automated insanity does not go away. Not when companies think ad money can be stolen. Blizzard and Deep Silver have both taken action this week to notify users that posting in-game footage is FINE. Why? Because third parties are making claims about their products, despite neither game using copyrighted music.

I would argue that it is not about content value but about free and very powerful content marketing/promotional job a popular you tuber can offer to strengthen product.

In a world where time and scarcity of attention are the most important factors, improved discoverability is priceless. These guys come incredibly cheap given quality and range of service they can offer.

They donít cost original content creator a penny. They are happy to earn on free service they attach to product of their choice and they agree on sharing that additional stream of revenue. Mark that ďof their choiceĒ. If barred from talking about particular product, they most likely focus on similar product (usually delivered by competition) and migrate to other channel if You Tube becomes too restrictive.

At this point, Robís main point comes into play. There is nothing short of shutting down whole internet that can stop it happening. There are too many people interested in this activity on all ends, there is no way to enforce it and then to prosecute offenders and sheer number of content creators makes any one-to-one license deals quite impossible too.

(Obviously speaking as an individual here), but I'd be surprised if most gaming companies have a problem with their games being on YouTube, even in AAA. Marketing is expensive, if a well-known YouTube personality plays your game, that's a lot of eyes on your game, that's a lot of exposure that would have been very expensive to obtain otherwise.

Games are different from music, in that if someone can listen to your music on YouTube, they might be less likely to buy it, whereas if someone sees someone playing your game on YouTube, and it looks fun, they might be more likely to buy it. (Unless your game is ao massively narrative driven that it becomes pointless to play it if the plot is spoiled)

I know from my experience, I picked up Battlefield 4 last week after seeing a particularly entertaining video of Robbaz playing it, and I'm sure I'm not the only one that's made a purchase decision after seeing an entertaining video. That's a AAA game that probably has a marketing budget in the millions, but it wasn't their marketing that convinced me to pick it up, it was a YouTube video that didn't cost them a penny.

First of all, if your intent is not to make money creating Let's Plays, then who cares, your videos are fine. Anybody operating the way a regular community does is fine. Most communities I know operate sites and channels as a hobby from which little to no financial gains are expected. Google not paying up as a result of infallible technologies uncovering breach of terms is certainly no news to any small gaming site which ever had the misfortune of getting onto adsense. Hobbyists are above that.

The important difference lies with people who earn money with video game streaming, with no other income. In terms of total numbers, those people are few. Those are also not the type of people who really promote a game. The metrics of how they operate are very simple. Take a game, stream it out, try to be a personality and see if it sticks. If the game does not stick, then next game. If people keep watching, you keep playing the game. It does not matter, if the game plays well, it has to look good and be a good catalyst for whatever show the person streaming puts on. The game being streamed has not to coincide with a PR plan to raise publicity. This might happen occasionally and a company is taunted to send out copies and even hardware. But beyond a few initial episodes, the stream will vanish as fast as the people watching it.

So I wonder, what benefit is there to having a culture of content masticators regurgitating games of questionable quality with train of thought blabber? Is Youtube hurting them for removing their ad? Well, so does the AdBlock plugin for your browser, go rant on that.

In the end, if publishers want their community to essentially create free publicity, then go help your community. I find it hard to believe that publishers care for commercial Youtubers. They are catered to for as long as they are in fashion, but nobody is going to stretch their budget to keep them in business. Publishers learned from Nintendo getting burned on trying to fight monetization. If Youtube wants to take the fall, then sure, why not. They certainly do not need streamers. Streamers might depend on Youtube to hit their numbers. Youtube does not. Google's reaction will depend on how much they feel threatened by streamers going to blip or twitch, not by how much out of their way they are willing to go for gamers.

"it's simply an outdated notion now that those channels are wide open and everyone who consumes content has the potential to remix, reinterpret and create their own."

Remixing existing work isn't the same as creating your own work. If the original author didn't give you the right to do that and even more importantly the right to make money of it then they should have an automatic right to sue. We should be protecting the original authors.

Plus the argument of scale is erroneous because all it requires is for game companies to make it known publically (Blizzard etc) or in the manual of their game what they are fine with people doing i.e. a license. If you want to be a content creator and especially if you plan to make money then the least that can be expected of you is to do the research. The law doesn't need changed, well at least for this. Personally I think the whole of youTube is a bit of a joke when it comes to copyright law and the main if not only beneficiary is Google.

We do not even know if publishers can allow players to stream freely. Take GTA5, for example. Sure, Rockstar licensed all the music to be part of the game. But does that include Rockstar having the right to allow other to redistribute that music by streaming the game? Not too man games really own all their assets in such a degree that they can allow players to just go wild.

I love it!! make reviewers PAY YOU if they want to review your games, maybe that will deter the swine from commenting on the absolute broken dross you peel off to consumers

bitter? much?

tell you what: How about you actually deliver what you promise and what you claim and what is actually worth the large sums of money you already get from the videogaming community as a whole, instead of this Day One Patch garbage that you currently do? Sound fair?

I mean let's face it. This has to be one of the only 'manufacturing industries' where people can release broken, faulty, buggy, glitchy and error laden products and then charge people full price for them and have the sheer audacity to come along and say ridiculous statements like:
" OH, AND IF YOU WANT TO TALK ABOUT OUR BROKEN PILE OF CRAP, OR EVEN REVIEW IT, THEN YOU SHOULD BE LINING OUR POCKETS TOO "

I recommend all to watch the following video before adding any form of reply to this comment:

That includes "critics": would a video of them talking about the game without any capture lend them as much money? What about the cases when they ruin a game reputation based on their sole judgement, but relying on that game assets to make the whole thing fun and attractive? Not fair at all to the creators. Fair use is precisely for when you don't make money out of it, making millions (sometime) on the back of creators (be it films, music, games, whatever) is not fair at all.

When an opera critic uses pictures of a stylish new staging of Don Giovanni and rips apart the production, the images used are there to give the consumer a fair idea of what the production looks like. Whilst the critic earns money in some way from the criticism of the production, the pictures are either promotional items handed out by the production company, or professional photographs that are sold onto news organisations.

The problem (or one of the problems) the games industry has is that the promotional material produced for many games isn't representative of the finished work. This covers everything from cut-scenes being the majority of a 2 minute trailer, to material not even being present (hiya Aliens: Colonial Marines). In these cases, the YT reviewer has no choice but to show vast portions of the actual game to illustrate their points.

Now, I'm not saying this is a good thing, but I am saying this is an argument against what you say.

Edited 1 times. Last edit by Morville O'Driscoll on 15th December 2013 10:42pm

It isn't just Let's Play videos that are getting hammered. Interviews are getting flagged in the current system. In what logical realm should a publisher be able to claim it owns a journalist's interview footage? No unfavorable review would ever see the light of day under such a system.

Too many opinions and posts to respond to them all but I will comment on the major premise of the first part of the article (great article, btw, Rob - a good talking point!)

The input of the creator of one of these Let's Play videos is undoubtedly significant, which explains why some of the best creators have such huge followings - but as in the case of the cat video with the commercial music track, the Let's Play video also leans heavily on the commercial work of another creator or company. It's pretty hard to find any credible moral argument which says that the composer of backing music should be paid, but the creator of the game in a Let's Play video shouldn't be paid.

I believe that the two situations are entirely different and that a very credible moral and legal argument can be made for the let's play video:

The music in the cat video was added artificially. It is not in its original setting or context and is purely present as a part of the form of the "work" in question - illegally used.

The Let's play video is a commentary on top of the playing of a game. The game itself is provided as-is by the creators for people to play - it is not modified and is used in its original context and intent.

To ban the let's play video in this example is to literally ban all video capture, mic recording and camera/video shooting in the world by following the logic of that argument. All of a sudden, Ford can sue you infringement for taking a video of your friend skateboarding with a Focus in the background, Hasbro can sue you for your video or photograph of your family playing one of their board games.

Just because "its on a PC" doesn't make the intent and matter different. What's the solution here? No one can ever create anything ever again that isn't devoid of any IP owned by others?

In many countries the concept of "if you're in public you have no right to privacy" - anyone can take a photograph, sound recording or video in public without consequence. These games are, once released, "in public. There's no real legal standing to take these down as per current legislation as long as they, themselves do not alter the original IP product.

[edit]
Just in case anyone wants to make the argument that all those things do not make money, well... I disagree - everything from Video clip TV shows to News outlets pay money for those things.

Edited 1 times. Last edit by James Prendergast on 16th December 2013 7:53am

It really is very simple. In this industry, our paychecks come from IP. IP laws protect us, the industry and our income. Anyone that works in games had better support IP laws for games, tools, movies and music. Do not send me a reel, if you are using cracked tools. Don't let me catch you with IP violating MP3's, TV shows, fonts or anything else on a work PC.

When I put content on YouTube, they ask me to certify that I own or have rights to use the material I am posting. If I lie, I am in violation of my agreement with Google and the rights owner can and almost must take action to protect their property. Our studio, like many, tolerates some streaming and game play videos where is helps to promote the games, but we will act when someone pulls 3D models from the games and sells them as their own. It is easy to pick on IP laws, but line is still clear: Commercial Intent. A game review is a fair use. If you are using someone else's material to make money, you can't complain when they target you.
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I had a video attributed to the very company I paid money to in an effort to license the song in first place. They made me jump all the hoops about that song, which video it was to be included in etc. I paid good money and everybody seemed happy. Until half a year later Google tries to play Chief Justice.

Right now, I can laugh about it, but imagine that happening when the video is still pulling in ad revenue (although ads were disabled due to the nature of the project). There is only one term to describe what Google is causing: overhead costs. If Google continues to cause too much overhead costs, it will be removed.

I get the feeling Google is trying appease Copyright extremists because they know their demands are very disruptive to many channels not infringing anybody's rights. Google probably hopes the ladder group then churns out the copyright extremists and Google can once more just kick back and cash in.

I'm not saying that they don't provide an awesome service to the developer to market their game but the problem is that it's the choice of the developer/publisher how he wants their game to be used.

Why is it wrong for publishers to do what I suggested? It clears up the legal grey area which ultimately will protect the youtubers. The only other solution is to change copyright law which could have a lot of unwanted consequences as its likely it would be used for circumstances it was never intended for.

Regarding the issue that the developer doesn't have the right to use the music etc. Well if he wants to have the game used in this way then he should get the license to do so. This again will protect the youtubers from both the publisher and anyone who contributed to the game as a sub contractor.

@Klaus - What is the process if someone complains? Maybe that's the real issue and not their policy as such.

The thing that is slightly irritating about some of these claims on youtube videos is companies are claiming background music. Some cases in which the company who is claiming it doesn't even own the rights to said music. Some cases when it hardly is even audible. Then there are times when you are just passing by a radio in game, and they claim that.

Frankly it's stupid and ridiculous. It's worse when a company reenacts the claim again after you dispute it.

Until the laws can change, YouTube can mitigate the problem by treating videos as innocent until proven guilty instead of the other way around. The automatic system, instead of just locking a video, should send an email to the content owner with a link to the video and a suggestion to check it out.